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Under internal guidance and in cooperation with visa policy of the U.S. State Department, USCIS is to uniformly and consistently process Form I-539 for changes to and extensions of B-2 status for cohabitating non-immigrant partners and other household members of principal non-immigrants.

In some circumstances, elderly parents, cohabitating non-immigrant partners, and other household members of principal non-immigrants may be ineligible for derivative status. For purposes of this memorandum, a “household member” of a principal non-immigrant is an alien who regularly resides in the same dwelling as the principal non-immigrant and with whom the principal non-immigrant maintains the type of relationship and care as one normally would expect between nuclear family members.

There are also circumstances when it may be inconvenient or impossible for spouses or children of principal non-immigrant aliens to apply for the proper derivative status. These aliens may seek B-2 visas, or change their status to B-2, to allow them to reside with the principal non-immigrant visa holder who is in the United States in another status (H-1B, F-1, etc.). Department of State guidance provides for issuance of B-2 visas to these household members.

Consular officers are to annotate the B-2 visa with the principal nonimmigrant’s visa type and duration, and to advise the B-2 visa holder to seek admission for one year at the point of entry if the B-2 visa holder plans to stay in the United States more than 6 months. Applicants may also seek extensions in six month increments from USCIS for the duration of the principal alien’s non-immigrant status.

When evaluating an application for change to or extension of B-2 status based on cohabitation, the cohabitating partner’s relationship to the non-immigrant principal alien in another status will be considered a favorable factor in allowing the household member to obtain or remain eligible for B-2 classification.

When considering a change of status and/or multiple extensions for the cohabitating partner or other household member, the finite nature of the stay, rather than the duration of the stay or number of extensions sought, is controlling with respect to nonimmigrant intent. For example, the visit should be considered temporary even if the status may be extended several times over several years in order to match an extended course of study undertaken by the principal alien. However, while the I-539 (B-2) application must be adjudicated on its own merits, a finding that the principal non-immigrant lacks non-immigrant intent is a negative factor in the exercise of USCIS’ discretion.

Secretary of State Hillary Rodham Clinton and Russian Foreign Minister Sergey Lavrov recently announced an agreement on the issuance of non-immigrant business, tourist, private and humanitarian visas to the Russian Federation, and for business and tourist visas to the United States, as well as short-term official travel visas to both counties.

This agreement will facilitate travel between our two countries and establish stronger ties between our people. The agreement benefits the largest segments of our traveling Americans and Russians – business travelers and tourists, traveling both as individuals and in groups, by granting as a rule, on a reciprocal basis, multiple-entry visas valid for 36 months.

The agreement also streamlines the visa issuance process by reducing the documentation required. These new visa validity periods will allow for expanded contacts and promote greater mutual understanding [...]. This agreement will go into effect after an exchange of diplomatic notes in Moscow.

Foreign visitors to the United States who wish to begin a course of study or training in the United States, without first obtaining a visa (such as F-1, J-1 or M-1) at a U.S. consulate abroad, need to be careful when applying for a so-called “change of status” with USCIS.

B1/B2-visitors CANNOT / MUST NOT enroll in and begin their studies BEFORE the student status is APPROVED by USCIS. A premature (i.e. “pre-approval”) start will result in a denial of the change of status, and subsequent departing the U.S. and obtaining a proper Visa at the Consulate will now be necessary.

There are no exceptions to USCIS’ position on this issue, and no other way to cure a status violation, other than departing the U.S., obtaining a proper visa, and subsequently re-entering the U.S. to re-establish good status.

A proper “change of status” from visitor to student/trainee IS possible if:

you are in current non-immigrant status (not yet expired) when the application for change of status is filed, AND

you have not yet enrolled in / begun classes, AND,

you have not engaged in unauthorized employment in the U.S. while in visitor status.

Lately, I have had an increased number of inquiries on this very issue.So I figured, now is as good astime as ever to briefly re-visit thisissue for the benefit of my readership. Certain kinds of “business”related travel, is permitted using a B-1 visitor visa. The definition of”business” under immigration law islimited, and does not generally allow for gainful employment, labor for hire or productive activity such asoperating a business or consultancy work.

Specifically, in the applicable U.S. law the term “business” is limited to (a) the negotiation of contracts,(b) consultation with businessassociates, (c) litigation, and (d) participationin scientific, educational, professional or business conventions,conferences or seminars and otherlegitimate activities of a commercialor professional nature.

Persons entering the U.S. on avisitor visa, for business or tourism (B-1/B-2), or without a visa on the Visa Waiver Program are not permittedto work, i.e. being “gainfully employed” in the United States. If you are planning to work, or to attend certain training in the U.S., you cannot enter the U.S. with a visitor visa. Instead, you will need a visa in one of the employment categoriesfor temporary workers.

The following are some further examples of legitimate B-1 activities: (1) Attending a scientific, educational,professional or business convention, conference or seminar, (2) Giving a lecture, (3) Doing independent research at a scientific or educationalinstitution, (4) Participating in a voluntary service program, (5) Participating in a sporting event.

People who have B-1 visas may not, in general, receive salaries or compensation from U.S. sources. You may be able to come to the U.S. on B-1 status whereby you continue to receive your compensation back home, and may only receive expense reimbursements in the U.S., but no direct financial gain.

If a business traveler, or a company for that matter, is in any doubt as to their anticipated or proposed conduct in the United States, DO seek the advice and counsel of a qualified immigration lawyer, BEFORE the business traveler boardsthat mission-critical flight US-bound.

The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask me to send you free written information about my qualifications and experience.